The legal authority for President Biden's loan forgiveness comes from existing legislation. [View all]

[lapucelle]

With all the discussion of President Biden's student loan forgiveness executive actions, it's important to be well informed to better address the inevitable criticism from all sides, including from those who claim that President Biden has no legal authority to forgive the loans and from others who mistakenly think that the action was taken through an executive order, complaining that the President either waited too long or overstepped his bounds of executive authority.

President Biden is using the legislative authority granted by Congress and encoded into statutory law to implement his loan forgiveness program.

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Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans

Headnotes: The Higher Education Relief Opportunities for Students Act of 2003, Pub. L. No. 108-76, 117 Stat. 904, grants the Secretary of Education authority to reduce or eliminate the obligation to repay the principal balance of federal student loan debt, including on a class-wide basis in response to the COVID-19 pandemic, provided all other requirements of the statute are satisfied.

https://www.justice.gov/olc/opinion/use-heroes-act-2003-cancel-principal-amounts-student-loans

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The Higher Education Relief Opportunities For Students Act (HEROES) Act of 2003 (Pub.L. 108–76 was legislation passed by bipartisan majorities in the United States Congress and signed into law by President George W. Bush on August 18, 2003. It allows the Secretary of Education to grant waivers or relief to recipients of student financial aid programs under Title IV of the Higher Education Act of 1965, "in connection with a war or other military operation or national emergency."

The Act allows waiving of statutory or regulatory requirements related to federal student loans for three categories of individuals: active duty military or National Guard officials, those who reside or are employed in a declared disaster area, or those who have suffered economic hardship as a result of wars, military operations, or national emergencies

The statue originally set the expiry date for the waiver authority on September 30, 2005. In 2005, Congress extended the expiry date to September 30, 2007 (Pub.L. 109–78).

In 2007, Congress eliminated the expiry date, making the waiver authority permanent (Pub.L. 110–93). In both cases, the extensions were passed unanimously by both chambers of Congress.

https://en.wikipedia.org/wiki/Higher_Education_Relief_Opportunities_For_Students_Act

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The Higher Education Relief Opportunities for Students (HEROES) Act of 2003 was passed in the House by 421-1, the lone "no" vote coming from George Miller, a Democrat from California. Twelve members did not vote. Sanders was included in that 421.

House vote:
https://clerk.house.gov/Votes/200396

It also passed by unanimous consent in the Senate, which included now President Joe Biden and then Senator Hillary Clinton of New York.

Senate vote
https://clerk.house.gov/Votes/200396

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The 2007 bill that made the waiver permanent also passed the Senate by unanimous consent. That Senate included senators Barack Obama, Hillary Clinton, and Joe Biden. Bernie Sanders (who was a representative at the time) also voted for the bill.

H.R.3625 - To make permanent the waiver authority of the Secretary of Education with respect to student financial assistance during a war or other military operation or national emergency

https://www.congress.gov/bill/110th-congress/house-bill/3625